Health and Democracy – the rights and duties of health care workers
Transcript of Health and Democracy – the rights and duties of health care workers
316 Health & Democracy
Chapter 10
The rights and duties of health care workers
The rights and duties of health care workers 317
CONTENTS 10.1 The indispensable role of health care workers 318 10.2 The rights of health care workers 319
The right to fair labour practices 319
The right to equality 325
Occupational health and safety rights 330
The right to compensation for occupational
injuries and diseases 336
The right to freedom of expression 338
10.3 The duties of health care workers 341 Duties to users 341
Duties to the profession 344
Duties to the general public 346
318 Health & Democracy
10.1 The indispensable role of health care workers
Health care workers (HCWs) play an indispensable role in the implementation
of health policy and the provision of health care services. However, their rights
are frequently overlooked, and many HCWs complain of poor conditions of
service, long hours and low wages. As a result many nurses in particular have
chosen to leave the public health service. Some have gone to the private sector
where conditions are better but job security is worse. Many have gone abroad.
In 2001, for example, it was estimated that over 23 000 South African health
workers were working in developed countries.
Health care workers play many different roles in providing health care.
Refl ecting this, the National Health Act 61 of 2003 recognises several categories
of HCWs:
❚ Health care personnel: defi ned as “health care providers and health
workers”, meaning all people who work in the health service.
❚ Health care providers: defi ned as people “providing health services in terms
of any law”, including the Allied Health Professions Act 63 of 1982,
the Health Professions Act 56 of 1974, the Nursing Act 50 of 1978, the
Pharmacy Act 53 of 1974, and the Dental Technicians Act 19 of 1979.
This means doctors, nurses, dentists, pharmacists and medical specialists.
❚ Health workers: defi ned as all people “involved in the provision of
health services to a user” and who are not health care providers, such
as persons responsible for cleaning, security, medical waste disposal and
clerical work. It also includes counsellors, community health workers,
environmental health offi cers, emergency medical service workers and
volunteers.
Together, these workers have the responsibility of ensuring that the
government’s health policies are translated into service delivery.
This chapter provides an overview of the rights and duties of HCWs in both
the public and private health care sectors. It starts by considering the rights
of HCWs as ordinary workers, focusing on the right to fair labour practices
and the right to organise in the workplace, the right to equality, occupational
health and safety rights, and the rights to freedom of conscience, religion,
thought, belief and opinion. In this respect we examine how the rights of all
HCWs are protected by the Constitution and the National Health Act, as well
as a range of general employment-related statutes, including:
The rights and duties of health care workers 319
❚ The Labour Relations Act 65 of 1995
❚ The Basic Conditions of Employment Act 75 of 1997
❚ The Employment Equity Act 55 of 1998
❚ The Occupational Health and Safety Act 85 of 1993
❚ The Compensation for Occupational Injuries and Diseases Act 130 of 1993
❚ The Protected Disclosures Act 26 of 2000
❚ The Promotion of Administrative Justice Act 3 of 2000
❚ The Public Service Act, Proclamation 103 of 1994 and regulations
❚ The Public Service Labour Relations Act 105 of 1994
We then consider the specifi c duties of health care providers, such as their
duties to their respective professions, to users of the health system and to the
general public. Here we look at some of the laws and policies that regulate the
professional conduct of health care providers, including:
❚ The Health Professions Act 56 of 1974
❚ The Nursing Act 50 of 1978
❚ The Batho Pele Principles of 1997
NOTE: This chapter does not deal with the duties of traditional health practitioners. These
are described fully in Chapter 7 on traditional and alternative health care.
10.2 The rights of health care workers
Under apartheid, black workers were denied basic human rights to organize
in trade unions of their own choice, to strike and to protest against low
wages and poor working conditions. However, in the 1970s and 1980s the
South African labour movement organized mainly under the Congress of
South African Trade Unions (COSATU) won many rights in the course of
strikes and struggles.
Today, the Constitution entrenches workers’ rights like other human rights
and various labour laws have been enacted to improve working conditions
and enable workers to enforce their rights.
The right to fair labour practices
The constitutional right to fair labour practices
Section 23(1) of the Constitution says that “everyone has the right to fair
labour practices”. The Labour Relations Act 66 of 1995 and the Employment
Equity Act, 55 of 1998 elaborate on the right to fair labour practices and are
dealt with in more detail in the next section.
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Section 23(2) of the Constitution says that every worker has the right:
❚ to form and join a trade union;
❚ to participate in the activities and programmes of a trade union; and
❚ to strike.
This includes health care workers, who are not designated as providing an
essential service.
There are other rights in the Constitution that are also signifi cant for health
care workers, including:
❚ The right to equality (section 9): this is the basis for protecting workers
against unfair discrimination, and for affi rmative action to promote the
advancement of previously disadvantaged groups.
❚ The right to human dignity (section 10): this was already an important
element in any common law contract of employment, promoting mutual
respect between employer and employee, and putting this into the
Constitution entrenches it further.
❚ The rights to freedom and security of the person, freedom of opinion,
freedom of expression, assembly, demonstration, picket and petition,
freedom of association, freedom of movement, freedom of trade,
occupation and profession, access to courts, and arrested and detained
persons: these all entrench the organising space needed for a vibrant and
democratic trade union movement which is transparent, accountable and
participatory and vital for the protection of health care worker’s rights
and the improvement of working conditions.
But in addition it is important for health care workers to know and take
advantage of their constitutional rights to:
❚ Access to information (section 32) [see also section 16 of LRA]: it could be
important to get hold of additional information which might be required
for trade unions to negotiate in collective bargaining and retrenchments.
CASE STUDY: USING THE CONSTITUTION TO IMPROVE LABOUR RIGHTS
Workers who do not benefi t from specifi c labour legislation have used section 23 of the Constitution to entrench their rights. For example, in the case of South African National Defence Force Union v Minister of Defence 1999 (4) SA 469 CC, soldiers used section 23 to gain the right to form and join their own trade union. In this case the Constitutional Court held that the term “worker” in section 23(2) should be interpreted to include members of the armed forces.
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For more information see the Promotion of Access to Information Act.
❚ Just administrative action (section 33): this might be important to
reinforce the rights of workers in dismissal and disciplinary disputes. For
more information see the Promotion of Administrative Justice Act.
The Labour Relations Act and Basic Conditions of Employment ActAfter the advent of democracy in 1994 a process began to codify the
constitutional right to fair labour practices into labour legislation and to
reform existing labour laws. The resulting labour laws spell out workers’
constitutional rights and the forums for their enforcement.
The most important of these laws are the Labour Relations Act (LRA) and
the Basic Conditions of Employment Act (BCEA). These laws deal with a range
of issues from hours of work, annual leave, sick leave, notice pay (under the
BCEA) to rights to challenge unfair labour practices and unfair dismissals and
negotiate and strike over better working conditions (under the LRA).
The LRA’s main purpose is to advance economic development, social
justice, labour peace and the democratisation of the workplace.
Similarly the BCEA aims to give effect to the fair labour practice provision in
the Constitution by setting minimum terms of employment. It sets maximum
hours of work and minimum days of leave for unorganised workers and
provides for ways to regulate and alter these, sector by sector, through sectoral
determinations. For example the BCEA states that:
❚ Every employee has a right to six weeks’ paid sick leave in a three-year
cycle. In the fi rst six months of work, an employee may take one day of
sick leave for every 26 days worked. If a worker is absent repeatedly or for
more than two days at a time, a medical certifi cate is required.
❚ For deaths, births and illness of children in the family an employee may
take up to three days’ paid family responsibility leave a year, provided
that they have been employed for more than four months.
Below we explain some of the most important aspects of these laws:
Protection against unfair dismissals and unfair labour practicesThe LRA protects all employees, including health care workers, against dismissal
unless the employer can show that the reasons for the dismissal and the process
were fair. The following reasons are internationally accepted as fair:
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❚ misconduct, eg being absent from work without permission;
❚ incapacity, eg being unable to carry out the work required; and
❚ retrenchment eg the employer no longer needs that type of work (called
“dismissal for operational requirements” in the LRA).
The LRA makes it automatically unfair to dismiss workers for arbitrary reasons
unrelated to conduct or performance at work. This includes being active in
trade unions, being part of a strike or supporting a strike which follows the
prescribed dispute procedures, pregnancy or making a disclosure, for example
of corruption, in terms of the Protected Disclosures Act 26 of 2000.
Workers may not be dismissed for discriminatory reasons like race, gender
or HIV status.
In terms of the LRA, “unfair labour practices” include:
❚ Unfair conduct of the employer in relation to promotion, demotion,
probation, providing training or supplying benefi ts.
❚ Unfair suspension or other unfair disciplinary action less serious
than dismissal.
❚ An employer making a worker suffer some occupational detriment or dis-
advantage at work after the worker has made a disclosure of information
eg where the employee has exposed corruption, such as theft in the
hospital pharmacy or laundry.
CASE STUDY: AN UNFAIR DISMISSAL?
Naude v MEC: DoH, Mpumalanga (Labour Court) JS 331/04In June 2000, Dr N was appointed as a Community Service Medical Offi cer at Rob Ferreira Hospital in Nelspruit, Mpumalanga. In March 2001, he applied to the Mpumalanga Department of Health (DoH) to upgrade his position to a Junior Medical Offi cer. His application was submitted to the medical superintendent, who in turn submitted it to the human resources (HR) division of the Mpumalanga DoH. The medical superintendent received oral confi rmation from a senior offi cial in HR that the MEC, Sibongile Manana, had approved the upgrading of Dr N’s post.
Some time later, the MEC was served with court papers in a case brought against her by an NGO called the Greater Nelspruit Rape Intervention Project (GRIP) regarding their right to provide access to post-exposure prophylaxis (PEP) services for reducing the risk of HIV transmission following sexual assault at Rob Ferreira Hospital. The court papers contained an affi davit made by Dr N in support of GRIP’s case. Dr N’s contract was not extended to that of a Junior Medical Offi cer as expected. A conciliation meeting at the Public Health Bargaining Council did not resolve the dispute over his unfair discrimination dismissal. In 2006 his case was still pending before the Labour Court.
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Health care workers can exercise their right to strike provided they are not one
of the groups specifi ed in a Bargaining Council agreement to provide minimum
services eg the intensive care section in hospitals or a designated essential service
by the Essential Services Committee. The Essential Services Committee has been
established by the Labour Relations Act to determine essential services. Some
services which have been designated as essential services include emergency
health services, blood transfusion services, nursing and medical and paramedical
services (including support services such as catering, medical records, security,
porter and reception, pharmaceutical and dispensary, medicine quality control
laboratory, forensics, laundry work, clinical engineering, hospital engineering,
waste removal, mortuary services and pest control).
Conditions at work: Collective agreements at bargaining councils for public sector workersAll health care workers have rights to organise in trade unions. But health care
workers who are employed by the government are also members of the public
service, and as such are also governed by the laws and regulations that apply
to the public service as a whole. The public service consists of employees of the
national departments and the provincial administrations who deliver a variety
of public services, including health services.
Section 197(2) of the Constitution states that “the terms and conditions of
employment in the public service must be regulated by national legislation”.
The structure of management in the public sector is determined by legislation,
particularly the Public Service Act, Proclamation 103 of 1994. In 1996 the Public
Service Amendment Laws reconfi gured managerial power in the public service in
an attempt to ensure that it could meet its constitutional obligations. Under the
amended laws the terms and conditions of employment of public servants were
incorporated into a collective agreement of the Public Service Co-ordinating
Bargaining Council (PSCBC). The power of authority to determine pay and
other conditions of service is now vested in the Minister of Public Service and
Administration. Collective bargaining is conducted at national level, and all pay
scales are determined in a central collective bargaining forum at the PSCBC.
Collective agreements reached at the PSCBC cover most areas of employment
including recruitment, salary scales and allowances, job descriptions, grading
and remuneration, service benefi ts, leave, working hours, emergency work,
probations, policy on dismissals and education and training.
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In recognition of the fact that different types of work raise different types of
issues the PSCBC has designated three sectors for the establishment of sectoral
bargaining councils. These are:
❚ the Public Health and Welfare Sectoral Bargaining Council
❚ the General Public Service Sectoral Bargaining Council
❚ the Safety and Security Sectoral Bargaining Council.
The Public Health and Welfare Sectoral Bargaining Council (PHWSBC) covers
all employees of the Department of Health and the Department of Welfare,
at national and provincial level. It is made up of representatives from the
relevant national and provincial government departments and representatives
from the health care sector.
These councils also deal with disputes and can make collective agreements
on organisation of work, employment and dismissals.
The rights of private sector health workersAs we explained in chapters 4 and 6, South Africa’s health system is divided
between private and publicly-funded sectors. Workers in privately owned
health care institutions are not covered by the PSCBC or PHWSBC. A large
proportion of the work in private hospitals and clinics is done by the staff of
nursing, cleaning, private security and other agencies who provide low wages,
little or no job security and no benefi ts. These workers have to negotiate, with
the assistance of their trade unions, workplace or company-level collective
agreements to regulate their terms of employment. However, private workers
can still use labour legislation to enforce their rights.
In addition, many public sector nurses also work in private hospitals and
clinics to improve their income. Because these employees are “moonlighting”
they often do not invoke their rights against unfair labour practices for fear of
losing the opportunity to supplement their income in the private sector.
EXAMPLE: AN AGREEMENT ON HIV/AIDS
In 2001 the PHWSBC reached an agreement on HIV/AIDS. This is refl ected in the 2001 Public Service Regulations where Chapter 1 Part VI paragraph E covers HIV/AIDS and related diseases. It sets out the rights of employees and duties of heads of departments in relation to occupational exposure, non-discrimination, HIV testing, confi dentiality and disclosure and a health promotion programme, eg departmental workplace policies. Similarly, Resolution 8 of 2001 of the PSCBC sets out a more detailed policy on HIV/AIDS coupled with a framework for training on these issues. It recognises the Code of Good Practice on Key Aspects of HIV/AIDS and Employment attached to the Employment Equity Act and the Southern African Development Community (SADC) Code on HIV/AIDS and Employment.
The rights and duties of health care workers 325
The right to equality
The Employment Equity Act
The right to equality is entrenched in section 9 of the Constitution. In the
labour context, it is recognised in the Employment Equity Act (EEA). This Act
aims to achieve equity in the workplace by promoting equal opportunity and
fair treatment in employment by:
❚ eliminating unfair discrimination; and
❚ implementing affi rmative action measures to redress the disadvantages
in employment that are still experienced by certain groups as a result of
apartheid.
The EEA aims to prevent discrimination of employees (including people
applying for jobs) by the employer, a co-worker, another employer or a client
of the employer.
The EEA refers to discrimination in relation to any “employment policy or
practice”, very broadly defi ned to include recruitment procedures, advertising
and selection criteria, the appointments process, job classifi cation and
grading, remuneration, benefi ts, terms of employment, job assignments, the
working environment and facilities, training and development, performance
evaluation systems, promotion, transfers, demotion, disciplinary issues, and
dismissals policy.
The EEA covers all the grounds for discrimination listed in the Constitution, for
example race, gender, and ethnic origin. But it also adds some new grounds:
❚ pregnancy, following the development of case law in recent disputes; and
❚ HIV/AIDS status, as a result of the high level of discrimination against
people with HIV.
Proving unfair discrimination
If a person feels that they have been unfairly discriminated against, there are
two stages to a complaint:
❚ The fi rst question to ask is whether or not there is evidence of the
employer having applied one of the listed or unlisted grounds
of discrimination. If the answer to this question is “yes”, there is
discrimination. For example, being treated differently on the basis of HIV
status would apply.
❚ The second question to decide is whether this discrimination is fair
or unfair. In the past the Labour Court has looked at the commercial
rationale for the employer’s action. Today it must also consider
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constitutional values, looking at the impact of the differentiation on
the individual, and then looking at the objective reasons. The court will
then consider whether the employer had looked at other, less harmful,
methods of achieving their objectives.
Discrimination can be direct or indirect. Direct discrimination would exist if an
employer transfers an employee who has HIV from a large internal offi ce into
a small solitary outside cubicle with no access to the same toilet or kitchen.
Indirect discrimination is harder to show. It might exist if an employer, without
giving reasons, failed to send female employees on training courses, thereby
making their promotion impossible.
CASE STUDY: DISCRIMINATION ON AN UNLISTED GROUND
In the case of NUMSA v Gabriels (Pty) Ltd 2002 23 ILJ 2088 (LC) the court said that, where differentiation is based on an unlisted ground in the EEA, it is not enough for the complainant to show that the employment policy or practice is arbitrary, she must show that it is based on an analogous ground. The complainant must identify the ground of discrimination relied upon and must show that it is based on attributes or characteristics which have the potential to impair the fundamental dignity of persons as human beings or to affect them adversely in a comparable manner. The complainant must establish that the discrimination is unfair with regard to the impact of the discrimination.
CASE STUDY: DISCRIMINATION ON THE BASIS OF HIV STATUS
In Hoffman v SAA 2000 11 BCLR 1211 (CC) an applicant for a job as a cabin attendant sued South African Airways (SAA) for refusing to employ him solely because he had HIV. One of SAA’s defences was that a mandatory yellow fever vaccination for cabin attendants (needed for travel to West Africa) might exacerbate his illness. Expert medical evidence however showed that people with HIV can receive this vaccination if they are not in the later stages of the HIV infection and being HIV negative was accordingly not an inherent requirement of the job of cabin attendant. The Constitutional Court said that employers should not lump all HIV positive employees together but should look at the stages of the infection and the impact on the individual. The Court said that the policy to exclude HIV positive applicants from employment as cabin attendants amounted to unfair discrimination. The key factor in determining the unfairness of discrimination is its impact on the person discriminated against.
The rights and duties of health care workers 327
The most common defence for discrimination is for the employer to
show that the discrimination was “fair”. In South Africa affi rmative action
is fair discrimination because it tries to overcome some of the disadvantages
black people faced in the past. Discrimination that relates to the ability of a
person to perform an inherent requirement of the job is also fair. An inherent
requirement of a job is a skill or capability without which a job may not be
properly performed. For example, an airline pilot must be able to see – this
fairly discriminates against blind people.
Codes of good practiceThe EEA allows for the establishment of codes of good practice to give direction
to employers and workers on how to tackle particular issues. These codes are
not equivalent to laws. However, because they are jointly negotiated at the
National Economic Development and Labour Advisory Council (Nedlac) by
the labour movement, employers’ organizations and the government, they are
considered binding and any departure must be justifi ed.
The Code of Good Practice on Disability in the Workplace seeks to limit the
impact of the section in the EEA which allows for discrimination on the basis
of an inherent requirement of the job. The Code strictly interprets inherent
requirements as essential features or indispensable attributes of the job.
The Code of Good Practice on Key Aspects of HIV/AIDS and Employment (2000)
is based on the principle that no person may be unfairly discriminated against
on the basis of HIV status. The Code sets out guidelines for employers and
employees to prevent unfair discrimination against workers living with HIV
and to manage HIV/AIDS within the workplace.
The Code covers:
❚ HIV testing, confi dentiality and disclosure;
❚ provision of equitable employee benefi ts;
❚ creating a non-discriminatory work environment;
❚ dealing with dismissals; and
❚ managing grievance procedures.
The Department of Labour has released HIV/AIDS Technical Assistance Guidelines
on the Code which explain in detail how the Code should be interpreted
and implemented.
328 Health & Democracy
Other codes include:
❚ the revised Code of Good Practice on Sexual Harassment; and
❚ the Code of Good Practice on Pregnancy and the Period after the Birth of a Child.
Medical testing under the EEA
One of the ways that the EEA protects against unfair discrimination is by
limiting the ability of employers to determine a worker’s health status
(including HIV status) without the worker’s consent.
Section 7 of the EEA limits an employer’s ability to use medical testing
as a way to establish a worker’s medical condition. Section 7(1) prevents an
employer from testing a worker for a medical condition unless:
❚ the law allows or requires it; or
❚ the testing is justifi able based on:
◗ medical facts;
◗ employment conditions;
◗ social policy;
◗ the fair distribution of employee benefi ts; or
◗ the inherent requirements of the job.
When it comes to HIV testing, the law is even stronger:
❚ section 7(2) of the EEA says that “testing of an employee to determine
that employee’s HIV status is prohibited unless such testing is determined
to be justifi able by the Labour Court”.
❚ section 50(4) allows a Labour Court that permits HIV testing to set
conditions for the testing, dealing with:
◗ providing counselling;
◗ maintaining confi dentiality;
◗ the period during which testing is authorised; and
◗ the category of jobs for which testing is authorised.
These restrictions on testing apply during an application for employment,
as a condition of employment, during procedures related to termination of
employment, as an eligibility requirement for training or staff development
programmes, and as an access requirement to obtain employee benefi ts.
When is Labour Court approval not needed for HIV testing?
Workplace VCT programmesLabour Court approval to test employees for HIV is not required when HIV testing is voluntary and confi dential in terms of a workplace voluntary counselling and testing (VCT) programme. Chapter 8 sets out the rights of people to provide informed consent for medical procedures including HIV testing.
The rights and duties of health care workers 329
Affi rmative actionSection 9(2) of the Bill of Rights states:
“To promote the achievement of equality, legislative and other measures
designed to protect or advance persons, or categories of persons,
disadvantaged by unfair discrimination may be taken.”
This is commonly known as “affi rmative action”.
The EEA is the law through which the State aims to advance people who
were previously disadvantaged in employment. It identifi es as designated
groups black people, women and the disabled and requires employers to take
“affi rmative action measures” to “redress these disadvantages and to further
diversity” in the workplace. Employers must ensure more equal opportunities,
and equitable representation of these three groups at all levels in the workplace,
through reasonable accommodation of suitably qualifi ed people and trying to
retain and develop them.
The main mechanism provided for this is the requirement that all public
sector employers, as well as larger or higher-turnover private sector employers
consult over an “employment equity plan” that aims at more equitable
Sero-prevalence surveysLabour Court approval is also not required where HIV tests are conducted for the purpose of determining the prevalence of HIV in that workplace (known as a sero-prevalence survey). However, this type of HIV testing should be conducted through an expert, outside agency to make sure the results of the tests are confi dential. Sero-prevalence studies must be in accordance with ethical and legal research principles.
Occupational exposure Health care workers can be tested for HIV after an occupational accident that carried the risk of exposure to blood or other bodily fl uids. Such tests should take place only at the initiative of a worker, with informed consent and pre- and post-test counselling and strict procedures regarding the confi dentiality of an employee’s HIV status. A health care worker would benefi t from such as test which would show whether it is necessary to take post-exposure prophylaxis and can be used as evidence in any subsequent claim to the Compensation Commissioner.
In the case of PFG Building Glass (Pty) Ltd v CEPPAWU 2003 5 BLLR 475 (LC) the Labour Court emphasised that where employees consent to HIV testing, the Labour Court should not interfere with their exercise of control over their own bodies. In such cases, there would be no need for an application to the Labour Court.
In the Labour Court case of I&J Ltd v Trawler and Line Fishing Union & others (2003) 24 ILJ 565 (LC), the court held that section 7(2) was aimed at prohibiting those HIV tests where the employer is enabled to determine the HIV status of a particular employee. Section 7(2) was not intended to affect voluntary testing where no disadvantage attaches to the decision of an employee not to submit to testing.
330 Health & Democracy
representation of women, black and disabled people at higher levels in the
workplace. This plan should be discussed with representatives from each
department or category of work, set goals for equity transformation over one
to fi ve years, and be reported at intervals to the Department of Labour. Such
a plan is supposed to follow an audit of all employment policies and practices
to identify barriers to such advancement.
In terms of the EEA the Department of Labour has issued a draft Human
Resources Code of Good Practice which provides guidelines on the elimination
of unfair discrimination and the implementation of affi rmative action
measures in the context of key human resource areas such as recruitment,
probation, medical and psychological assessments, conditions of employment,
remuneration, job descriptions, skills development, promotion, discipline,
and termination of employment.
Occupational health and safety rightsHealth care workers have a much greater likelihood of exposure to ill-health
and injury associated with the practice of medicine than employees in most
other forms of employment. This makes knowing the law and enforcing it (if
necessary through pre-emptive collective action) essential.
Section 24 of the Constitution states that “everyone has the right to an
environment that is not harmful to their health or well-being”. This must include
the right to a safe working environment, necessary to prevent accidents and
workers from contracting occupational diseases.
The Occupational Health and Safety Act
The Occupational Health and Safety Act is concerned with the impact of the
workplace on the physical, emotional and psychological health and well-
being of employees. This includes everything from work activities themselves
to the materials and processes involved. The Act is based on the principle
that workers and employers should regulate their own workplaces to prevent
occupational injury and disease.
Key Point
Workers also have a right of access to information about the health effects of the hazards that may be present in their workplaces.
The rights and duties of health care workers 331
The Act says employers must:
❚ provide a safe working environment that is without risk to the health
of employees;
❚ organise work, equipment and machinery in such a way that they
are safe;
❚ provide information and training so that people are aware of risks to
health and safety;
❚ make sure work is properly supervised;
❚ enforce the necessary health and safety measures;
❚ inform workers and supervisors about the roles they must play in
controlling health and safety problems; and
❚ ensure the physical safety of their workers while on duty.
Employers often defi ne health and safety issues in the workplace. Although
employers are obliged to assess occupational health and safety hazards and
provide mechanisms to address them, workers should play a central role in
identifying working conditions which pose a risk to their health and safety.
Budget cuts, frozen posts and decreased funding in the health care sector have a
direct impact on the health and safety of health care workers, whose occupational
health and safety rights are often neglected. Health care workers provide health
services under diffi cult conditions and often neglect their own health and safety.
For example, the absence of protective gloves increases a health worker’s risk of
contracting infections through needle-pricks or broken skin.
The Act defi nes an employee as any person who is employed by or works for
an employer and is either entitled to remuneration or works under the direction
of any employer. This means that volunteers or unpaid community health
workers are classifi ed as an employee for the purpose of the Act. Similarly health
care workers who are employed by labour brokers or agencies are regarded as
employees irrespective of who pays them, and can therefore benefi t from the
provisions of the Act. For example, where health care workers belong to an
agency that deploys them to health establishments, the health establishment has
certain duties in terms of the Act towards those health care workers irrespective
of whether they receive a salary from the agency or health establishment.
In terms of the Act every employer who employs more than 20 employees,
must appoint health and safety representatives. Such representatives should
only be appointed after consultation with the employees and/or their
trade union regarding the nomination and election of health and safety
representatives. The health and safety representatives’ functions include:
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❚ reviewing the effectiveness of health and safety measures;
❚ identifying potential hazards and potential major incidents at the workplace;
❚ examining the causes of workplace incidents with the employer;
❚ making representations to the employer or health and safety committee
on potential hazards, incidents or general matters affecting the health or
safety of employees at the workplace;
❚ inspection of the workplace with due notice;
❚ participation in consultations with and inspections of the inspectors; and
❚ attending meetings of the health and safety committee.
The Act gives health and safety representatives wide powers to assess hazards
at the workplace and determine how to minimise their potential impact. It is
important that these representatives are aware of the mechanisms available to
them in the performance of their functions. For example, they are entitled to:
❚ visit and inspect the site of an incident at any time;
❚ attend any investigation or formal inquiry held in terms of the Act;,
❚ in so far as is reasonably necessary to perform their functions, inspect any
document which the employer is required to keep in terms of the Act;
❚ accompany an inspector on any inspection;
❚ be accompanied by a technical advisor on any inspection; and
❚ participate in any health or safety audit.
The employer must provide facilities, assistance and training to health and safety
representatives. Where there are two or more health and safety representatives
in any workplace, an employer must establish a health and safety committee
that must be involved in the development of health and safety policy. The Act
places an obligation on employers to consult regularly with the health and
safety representatives and committee on policy, safety measures and any other
health and safety issue. The employer must provide suffi cient information to
assist the committee to contribute in the consultation.
Example: Hazards experienced by primary health care workers
In a training programme on occupational health and safety, municipal health
care workers identifi ed the following hazards:
Safety hazards: violence, assault, rape, aggressive and angry health care users,
carrying heavy equipment, faulty electrical plugs, broken chairs, fl ammable
substances, inadequate security, inadequate procedures for disposing of sharps,
lack of fi re extinguishers, poor medical waste management, slippery fl oors,
unsafe transport, unserviced machinery and broken equipment.
The rights and duties of health care workers 333
Health hazards: these can be classifi ed into chemical, physical, biological,
ergonomic and psycho-social hazards. In the case of health care workers, the
presence and risk of exposure to biological hazards are more pronounced – for
example, exposure to viruses, bacteria and parasites that can be transmitted
through the air or through body fl uids (such as TB, Hepatitis B and HIV).
Health care workers’ risk of exposure to these hazards are affected by working
conditions such as overcrowding, bad ventilation, inadequate supply and use
of personal protective equipment (PPE), negligent waste disposal methods
and staff shortages. These conditions cause burn-out, stress and depression
amongst health care workers, which in turn increases the risk of occupational
injuries and exacerbates staff shortages.
Source: Who cares for health care workers? A participatory research investigation into the state of
occupational health and safety in municipal health clinics in South Africa, SAMWU, Municipal
Service Project and Industrial Health Research Group, November 2004, pages 43-44
The Regulations for Hazardous Biological Agents passed in terms of the
Act cover:
❚ defi nitions of the four different categories of hazardous biological agents
according to risk;
❚ standard precautions in relation to blood, bodily fl uids, skin and tissues;
❚ the employer’s duty to inform and train any worker exposed to any hazard;
❚ the need for risk assessments by employers or sub-contractors;
❚ monitoring exposure at the workplace; and
❚ medical surveillance.
Knowing and enforcing these regulations is important for health care workers.
They can help to avoid problems like casual cleaners being infected with HIV
from handling old, damaged or leaky boxes where sharps in contact with
blood are kept.
In terms of the Occupational Health and Safety Act a worker should report
an incident of occupational exposure to the employer or health and safety
representative. Unsafe conditions should be reported to the Health and Safety
Representative. If health and safety concerns are not adequately dealt with
in the workplace, complaints can be submitted to the Chief Inspector at the
Department of Labour.
The Chief Inspectorate’s functions include the following:
❚ ensure and enforce compliance with the Act and regulations;
❚ inspect workplaces;
334 Health & Democracy
❚ prohibit dangerous workplace activities and conditions; and
❚ conduct investigations or formal inquiries into hazardous or potentially
hazardous incidents occurring in workplaces.
The National Health Act
The National Health Act also deals with occupational health and safety. Health
establishments must implement measures that minimise injury or damage to
the person or property of HCWs. This means that HCWs must be protected
from physical harm, with their working environment made safe and free from
any hazardous incidents.
❚ HCWs must be provided with protective clothing against airborne viruses
such as Severe Acute Respiratory Syndrome (SARS) or Ebola.
❚ if an HCW accidentally pricks him- or herself with a needle containing
blood from a person who may be HIV positive, the necessary measures
Managing occupational exposure to HIV
In terms of the Regulations for Hazardous Biological Agents (HBA), HIV is classifi ed as an HBA that may cause severe human disease and presents a serious hazard to exposed persons but for which effective prophylaxis and treatment is available. The Regulations apply to incidents or exposure to HIV during work in health care units, including isolation and post-mortem units; in clinical and diagnostic laboratories and in the general workplace.
An employer must make sure that the exposure of persons to HIV in the working environment is either prevented or, where this is not reasonably practicable, adequately controlled; and that standard precautions are implemented to reduce the risk of transmission of HIV from recognised and unrecognised sources of infection in a workplace. OHSA defi nes “reasonably practicable” to mean practicable having regard to:❚ the severity and scope of the hazard or risk concerned;❚ the state of knowledge reasonably available concerning that hazard or risk and of any means
of removing or mitigating that hazard or risk;❚ the availability and suitability of means to remove or mitigate that hazard or risk; and❚ the cost of removing or mitigating that hazard or risk in relation to the benefi ts deriving
from it. An employer must control the exposure of persons to a HIV in the working environment by
introducing appropriate work procedures that workers must follow where materials are used, processes are carried out, or incidents might occur that could give rise to the exposure of a worker to HIV, and such procedures shall include written instructions to ensure:❚ the safe handling, use and disposal of HBA;❚ a system whereby changes in work procedures and processes that indicate the need for early
corrective action can be readily identifi ed.If it is not reasonably practicable to ensure that the exposure of a worker to HIV is adequately
The rights and duties of health care workers 335
must be taken to ensure that the worker has access to post-exposure
prophylaxis (PEP) to reduce the risk of HIV transmission.
To ensure compliance with these policies by health establishments the National
Health Act establishes an Inspectorate for Health Establishments.
The provisions in the National Health Act should be read with the
Occupational Health and Safety Act and labour legislation governing working
conditions. This approach accords with the International Labour Organisation’s
Nursing Personnel Recommendation of 1977 (R157) which prescribes that
all possible steps should be taken to make sure that nursing personnel are
not exposed to special risks. Where exposure to special risks is unavoidable,
measures should be taken to minimise it. The measures suggested include the
provision and use of protective clothing, shorter hours, more frequent rest
breaks, temporary removal from the risk or longer annual holidays should
be provided for in respect of nursing personnel regularly assigned to duties
controlled, the employer shall give the worker suitable impermeable personal protective equipment at the employer’s expense.
The Department of Health’s policy on the Management of Occupational Exposure to HIV (2000) applies to “health care workers:’ and refers to all personnel (both professional and non professional) working in health care settings whose activities involve contact with health care users or who handle blood products and body fl uids.
Health care workers whose work involves blood collection or the use of sharp instruments such as needles and scalpels, the insertion of intravenous catheters, or minor and major surgery, are at increased risk of occupational injury and exposure to HIV infected blood. There is also a potential risk to workers handling soiled linen and those involved in handling corpses and performing post mortem examinations.
The risk of exposure to HIV and HBV is minimised by strict adherence to standard universal precautions and by adoption of procedures to sterilise or disinfect equipment in contact with blood or blood products. Universal precautions require that health care workers treat the blood and body fl uids of all persons as potential sources of infection, independent of perceived risk or diagnosis.
The health facility where you work must inform you about infection risks and ensure that you comply with infection control procedures including (1) the use of protective equipment (i.e. gloves, and aprons); (2) covering skin lesions, cuts or abrasions with occlusive dressings; and (3) ensuring that equipment in contact with blood and body fl uids is appropriately disinfected and sterilised.
If an accidental exposure occurred, various procedures should be followed, including evaluating the risk of exposure to HIV, documenting the incident, counselling the health care worker and administering post-exposure prophylaxis (PEP) in high risk cases.
336 Health & Democracy
involving special risks so as to reduce their exposure to these risks. In addition,
it is recommended that nursing personnel who are exposed to special risks
should receive fi nancial compensation. Nursing students and nursing personnel
should not be assigned to work that goes beyond their qualifi cations and
competence. Where individuals are not qualifi ed for work that they already
do, they should be trained to obtain the necessary qualifi cations.
The right to compensation for occupational injuries and diseasesThe Compensation for Occupational Injuries and Diseases Act 130 of 1993
(COIDA) provides for compensation for:
❚ any disability caused by occupational injuries or diseases sustained or
contracted by employees in the course of their employment; or
❚ death resulting from occupational injuries or diseases.
In terms of the Act the Compensation Commissioner is held liable for any
occupational injuries or diseases instead of the employer, although the employer
is liable for wages and costs during the employee’s fi rst three months off work.
The Act requires that anyone applying for compensation for an occupational
injury or disease must follow the reporting and claims procedures in the Act
within the stipulated timeframes. To be eligible for benefi ts an employee must
show that he has sustained an occupational injury or disease arising out of
and in the course of his employment. Benefi ts include medical expenses, wage
replacement and death expenses. Employees are not entitled to benefi ts for
pain and suffering resulting from the workplace incident.
Objections to the decision of the Compensation Commissioner should be
done in writing within 90 days of receiving the decision. It is possible to re-open
a claim in the event of deterioration where treatment will assist in rehabilitation.
It is also possible to get additional compensation where it can be shown that the
injury or illness was as a result of the negligence of the employer.
Example: Compensation for post traumatic stress disorder
Post Traumatic Stress Disorder (PTSD) is a mental disorder following an
exposure to an extreme traumatic event or unusual stressor. PTSD is regarded
as an occupational injury and a claim will not be eligible for benefi ts unless:
❚ the individual was exposed to an extreme trauma or unusual stressor;
❚ which arose out of and in the course of employment;
The rights and duties of health care workers 337
❚ the employee experienced PTSD symptoms within 6 months of the
incident;
❚ the employment-related trauma was a key factor in the development of
PTSD; and
❚ the claim was made within a year of the date of diagnosis.
Workers who claim compensation for PTSD are evaluated every 2 years and,
if the condition has reversed, the pension will be withdrawn.
Example: Occupational exposure to HIV
If an HCW acquires HIV as a result of an occupational exposure to infected
blood, he or she must report the accident and has a right to claim compensation
under COIDA. There is a danger that because some workers fear stigma
and discrimination, or that their employers will not respect their right to
confi dentiality, they will not report accidents. This makes it all the more
necessary to reduce the fears of health care workers by implementing workplace
programmes protecting privacy, outlawing discrimination and providing care
and support. The employer must take the necessary steps to assist workers in
their applications to the Compensation Commissioner to claim benefi ts.
The Department of Labour has issued a draft Circular Instruction regarding
compensation for occupationally acquired HIV infection and AIDS which
defi nes occupationally acquired HIV and sets out the criteria for the diagnosis
of occupationally acquired HIV, the procedures for reporting occupationally
acquired HIV, the method of assessment of impairment and the medical
benefi ts payable.
In terms of the draft Instruction, the criteria that an employee will have to
meet before a claim will be considered includes:
❚ an occupational exposure to an HIV infected source;
❚ a documented work related incident involving a potential HIV infected
source;
❚ blood test results of the affected employee within 72 hours of the incident
confi rming the absence of HIV antibodies;
❚ as far as reasonably practicable confi rmation that the source was HIV
infected; and
❚ blood test results of the affected employee confi rming HIV infection
(sero-conversion) at 6 and/or 12 weeks or 6 months after the date of the
work-related incident.
338 Health & Democracy
The right to freedom of expression
Whistle-blowing and protected disclosures
Corruption within the public sector is a serious problem. It undermines the
provision of services and thus the right of access to health care services. In
1999 a resolution adopted at the National Anti-Corruption Summit made
specifi c reference to developing, encouraging and implementing “whistle-
blowing” measures, including protecting people from victimization when
they expose corruption and unethical practice. This led to Parliament passing
the Protected Disclosures Act 26 of 2000.
The Act provides for procedures to protect employees, in both the private
and public sector, who disclose information of unlawful or corrupt conduct
by their employers. These employees are known as “whistle-blowers”, who
are protected from “occupational detriment” – in other words, harm in the
workplace as a result of making a “protected disclosure”.
Points to remember: Need for whistle-blowing
❚ Whistle-blowing is about ensuring that malpractice, fraud and corruption
are dealt with in a manner that promotes individual responsibility and
organisational accountability.
❚ Whistle-blowers act in good faith and in the public interest, raising
concerns about real problems in the workplace. They risk victimisation
and sometimes dismissal. Because of this, they need to be protected.
Protected disclosuresAn employee’s disclosure of information will only be protected if it relates to the
conduct of an employer, or an employee of that employer. The person making the
disclosure must believe that the information shows one or more of the following:
❚ that a criminal offence has been or is being committed;
❚ that someone is not complying with their legal obligations;
❚ that a miscarriage of justice has or is likely to happen;
❚ that the health or safety of a person(s) is likely to be endangered;
❚ that the environment has been or is likely to be damaged;
❚ that someone is thinking of any act of unfair discrimination;
❚ that any one of the above is being concealed.
Once an employee has shown that the disclosure relates to one of the issues above,
s/he will have to prove that this disclosure was made to one of the following:
The rights and duties of health care workers 339
❚ a legal adviser
❚ an employer
❚ an employer’s representative
❚ a member of the Cabinet
❚ a member of the Provincial Executive
❚ a body like the Public Protector or the Auditor General.
General disclosuresIf the employee cannot prove that the disclosure was made to one of the
persons listed above, he will have to show that the information was made
available generally. In such a case the disclosure must be a disclosure in good
faith, or with no hidden motives; and the employee must reasonably believe
that the information is substantially true.
The employee will also have to show that:
❚ he believes that if they told their employer, the employer would take
some unfair action against them (see “occupational detriment” below);
❚ he believes that if they told their employer, some of the evidence relating
to the information would be concealed, and there is no other appropriate
person to tell the information to;
❚ he has already told the employer or one of the people listed above and a
reasonable time has passed and no action has been taken; or
❚ the improper act or remark he is disclosing has or will have exceptionally
serious consequences.
In Communications Workers Union v Mobile Telephone Networks (Pty) Ltd (2003)
24 ILJ 1670 (LC) the court said that disclosures are protected if they relate to
misconduct or criminal activity and there is no protection for an employee
who sets out to “embarrass or harass” an employer.
Occupational detriment
Once the employee has shown that his disclosure is protected, he must also
prove that as a result of this disclosure, the employer or a representative took
some kind of unfair action against him, amounting to an “occupational
detriment” or a harm of some kind relating to his work.
In Grieve v Denel (Pty) Ltd (2003) 24 ILJ 551 (LC) an employee told his supervisor
about mismanagement by the general manager. The employee was charged with
misconduct and called to a disciplinary hearing. The employee applied to the
Labour Court for protection under the Protected Disclosures Act. The court held
340 Health & Democracy
that although the employee was not charged for disclosing the information, but
for the way in which he obtained the information, this still amounted to an
occupational detriment. This was because the employee could show there was a
link between his disclosure and the charges made against him.
Example: Complaining about a senior doctor
In the context of health services this law may work as an early warning system
that may lessen possible risks to the health establishment or to users. For
example, imagine a doctor who repeatedly tests users for HIV without their
consent. Because of his senior position in the hospital, nurses may be afraid to
lodge complaints against him with the medical superintendent. But under the
Protected Disclosures Act, they may complain without fear of victimisation.
Process for challenging victimisation arising from whistle-blowing
If an employee can show:
❚ that he made a “protected disclosure” as defi ned in the Act; and
❚ that this disclosure led to an “occupational detriment” other than
dismissal,
he will be able to claim that his employer subjected him to an unfair labour
practice.
Employees who suffer unfair labour practices can claim compensation for
unfairness and the loss of their rights to fair labour practices, and for the unfair
labour practices to be stopped. They can do this by referring a dispute with
their employer to the Commission for Conciliation, Mediation and Arbitration
(CCMA) if private sector health care workers, or to the Public Health and
Welfare Sector Bargaining Council, if public sector health care workers. The
commissioners at the CCMA or panellists at the bargaining council will fi rst
conciliate, and if the conciliation fails, they will arbitrate on this dispute
(section 186(2)(d) of the LRA).
If the employee has been dismissed as a result of having made a protected
disclosure, then the route to follow to challenge the dismissal is different.
They will still go to conciliation at the CCMA or the bargaining council. If
conciliation fails, then they can take their dismissal to the Labour Court for
adjudication (section 187(1)(h) of the LRA).
The rights and duties of health care workers 341
Key Point: Compensation for whistle-blowing
If you are dismissed as a result of a protected disclosure, you have a right to
claim compensation up to a maximum amount of two years’ salary, or to seek
reinstatement. If you suffer an “occupational detriment”, you have the right
to claim compensation up to a maximum amount of one year’s salary, and to
seek for the “detriment” to be removed.
10.3 The duties of health care workers
Because of the importance of health and its impact on so many other aspects of
life, health care workers fi nd themselves with a range of duties, including to a
user’s family members, the community and non-governmental organisations,
CASE STUDY: THE CONSTITUTIONAL RIGHT TO SPEAK OUT
Health care providers may sometimes experience split loyalties. In some circumstances their work may throw up confl icts between:❚ the ethics of the profession;❚ the duty to the user or other users of the health care system;❚ the duty to the state and/or any other employer.
Dr Costa Gazi, a prominent member of the Pan-Africanist Congress (PAC), was employed as Head of the Department of Public Health at Cecilia Makiwane Hospital in Mdantsane, East London. He was concerned about the high numbers of infants dying of AIDS-related illnesses in local clinics and the government’s failure to provide AZT, an ARV medicine, which had at the time been shown to reduce the risk of HIV transmission from mother to child. In 1999, Dr Gazi criticised the Minister for refusing to provide AZT to pregnant women living with HIV and said that she should be charged with manslaughter. As a result, he was charged with misconduct under section 20 of the Public Service Act , Proclamation103 of 1994. It was argued that he had caused prejudice to the administration of the department.
A disciplinary enquiry held in December 1999 found Dr Gazi guilty of violating section 20(f) of the Public Service Act, which states that an employee is guilty of misconduct if he or she publicly comments to the prejudice of the administration of any national or provincial department. Dr Gazi was warned not to repeat the same “unprofessional behaviour” and to pay a fi ne of R1 000, half of which was suspended for 6 months, on condition that he was not found guilty of the same offence within this period.
Dr Gazi took the decision on review to the Pretoria High Court, where it was dismissed with costs. In a judgment on appeal, handed down by a full bench of the Pretoria High Court in March 2006, the Court overturned the fi nding of misconduct against Dr Gazi. The Court held that, if the comments, or the widespread criticism of the policy not to supply AZT, did cause any prejudice to the department, such prejudice already existed when the comments were made and there could therefore be no causal link between the appellant’s actions and any prejudice the department might have suffered.
342 Health & Democracy
researchers and academics studying the impact of their work. These duties,
which may sometimes appear to be in confl ict with one another, are set out
more fully below.
Duties to users
The National Health ActChapter 8 of this Handbook considers the rights of users of the health
care system. In many ways, the duties of health care workers to their users
correspond with these rights. The NHA, in particular, sets out the duties of
health care providers.
Examples: User’s rights
❚ A user’s right to have access to information regarding her health status
and the “range of diagnostic procedures and treatment options generally
available” corresponds with a duty on health care providers to give this
information.
❚ A user’s right to confi dentiality places a duty on health care workers to
respect and protect her confi dentially.
For more information on links with the rights of users, see chapter 8.
But a user’s rights and the corresponding duties of health care workers are
not absolute.
Example: Abuse or harassment of health care provider
Section 20(4) of the NHA allows a health care provider to refuse to treat a user
who is physically or verbally abusive or who sexually harasses her. In these
kinds of cases, users waive (give up) their rights of access through their own
conduct.
The Occupational Health and Safety Act
Workers have a duty to take reasonable care of their health and safety, as well
as that of persons who may be affected by their actions. This includes reporting
unsafe and unhealthy conditions to a health and safety representative or
reporting “incidents” before the end of the shift to the employer, and not
interfering with or misusing anything provided by the employer in the
interests of health and safety (eg personal protective equipment).
The rights and duties of health care workers 343
Ethical GuidelinesIn addition to their legal duties health care providers also have ethical
responsibilities which are often set out in the ethical guidelines of their
professional bodies. For example, although the law says that users have a right
to confi dentiality, the ethical guidelines of the Health Professions Council of
SA explain that in certain rare situations it is justifi able (and there is a duty) to
breach confi dentiality.
Example: Notifying partners about HIV infection
A health care worker must respect the right to privacy of health care users,
particularly with stigmatised diseases such as HIV infection. As a rule, he or
she may tell a health care user’s sexual partner about the user’s HIV status
only when:
❚ the sexual partner is known and identifi able;
❚ the user has been counselled on the need to inform his or her sexual
partner or to have safer sex, and the duty to protect his or her sexual
partners;
❚ the sexual partner is at risk of being infected with HIV because the user
has refused to inform him or her of his or her HIV status or has refused to
have safer sex;
❚ the user has been warned that if he or she does not inform his or her
sexual partner or have safer sex, the health care worker will have to
breach confi dentiality.
Health care is often very private and intimate. It reveals information about
people’s private lives. Not surprisingly, sometimes health care workers may
experience feelings of confl ict between their duties at work and their own
personal beliefs, feelings and opinions.
Example: Providing termination of pregnancy services
Some health care workers may feel that their religious belief that life is
sacred is in confl ict with a user’s right to choose to terminate her pregnancy.
This may cause a confl ict between a health worker’s duty to provide access
to health care services and her own personal beliefs or morality. In these
cases, according to legislation and the Constitution, the primary duty of a
health care worker is to provide health care and to act in the best interest
of the user.
344 Health & Democracy
Chapter 10 explains women’s rights under the Choice on Termination of
Pregnancy Act 92 of 1996. The Act gives effect to the Constitutional right to bodily
and psychological integrity, which includes the right to make decisions concerning
reproduction. The Act allows for termination of pregnancy on demand during the
fi rst 12 weeks of pregnancy and under certain circumstances thereafter.
The Act has been challenged for violating a foetus’s right to life and for
allowing termination of pregnancy services to young people. The Court has,
however, refused to accord a foetus the status of a legal person.
The South African Nursing Council’s policy on nurses’ rights acknowledges
that nurses have a right to conscientious objection provided that the employer
has been timeously informed in writing and it does not interfere with the
safety of the user.
Duties to the professionIn addition to the laws, policies and regulations described above there are a
number of statutory bodies with a legal responsibility to regulate and oversee
the main health professions. These include:
❚ the Health Professions Council;
❚ the SA Nursing Council;
❚ the SA Pharmacy Council;
❚ the Allied Health Professions Council; and
❚ the SA Dental Technicians Council.
Under the NHA each of these councils will also form part of the Forum of
Statutory Health Professional Councils. This forum is supposed to discuss
issues including:
❚ how to protect the interests of the public and users;
❚ communication and streamlining of policies;
❚ responding to complaints from the public like ombudsmen;
❚ setting performance improvement targets;
❚ developing policies on education, training and distribution of health care
providers; and
❚ monitoring, reporting and advising on the professional councils above.
At time when this handbook was being fi nalised the Forum had not yet been
established.
Below we refer briefl y to some of the statutory bodies and the duties they
establish for health professionals.
The rights and duties of health care workers 345
The Health Professions Council of South Africa (HPCSA)The HPCSA was established by the Health Professions Act 56 of 1974. Under
this law all practising doctors, dentists and psychologists have a duty to
register with the HPCSA. Any unregistered person who practises as a medical
practitioner is guilty of a criminal offence.
The HPCSA is meant to:
❚ promote the health of the population;
❚ determine standards of professional education and training; and
❚ set and maintain excellent standards of ethical and professional practice.
One of the HPCSA’s main roles is to provide guidelines for regulating the conduct
of health care providers in order to protect the interests and rights of users of
health care services. It does this through a series of Professional Boards which are
“responsible for formulating the rules and regulations of conduct and professional
practice, as well as conducting preliminary and professional enquiries.”
The South African Nursing Council (SANC)
The Nursing Act 50 of 1978 provides for the establishment of the SANC. Under
this law no person may practise as a nurse unless they are registered with the
SANC. To do so is a criminal offence.
Like the HPCSA the SANC must ensure that nurses comply with their
duties to respect the “constitutional rights of users to human dignity, bodily
and psychological integrity and equality and that disciplinary action is taken
against nurses who fail to do so”.
The SANC has developed a number of policies including on HIV/AIDS and
on nurses’ rights. The latter policy is particularly important given the pressure
under which nurses are often placed by their employers and other health care
workers.
The SANC has powers to ensure that nurses comply with their ethical and
legal duties. It may institute an inquiry into any complaint, charge or allegation
of improper or disgraceful conduct. A guilty fi nding may be followed by the
SANC imposing one or more of a range of penalties, including cautions or
reprimands, removal from the rolls and fi nes. However, the council must fi rst
summon the nurse to an inquiry.
346 Health & Democracy
Duties to the general publicThe primary duty of a health care worker is to the user. But they also have a
duty to society as a whole. This is refl ected in the Constitution, the NHA and
the Health Charter which sees health as a shared social responsibility and
encourages partnerships between health providers and the communities they
work in. This is the rationale behind bodies such as Hospital Boards and clinic
committees – which directly involve communities in health planning.
The basic values and principles that govern public administration are set
out in section 195 of the Constitution. These duties fall on all people who
work in the public service, including health care workers.
Section 195 says that public servants must maintain and promote a high
standard of professional ethics and effi cient, economic and effective use
of resources. It also requires that services be provided “impartially, fairly,
equitably and without bias” and that people’s needs be responded to and the
public be encouraged to participate in decision making. This applies to health
care workers and health services.
In 1997, the Department of Public Service and Administration tried to give effect
to section 195 of the Constitution by publishing a White Paper that introduced the
Batho Pele (People First) Principles. The Batho Pele Principles aim to:
❚ enhance the quality and accessibility of government services by
improving effi ciency and accountability, especially in the public service;
and
❚ promote openness and transparency within the public service.
Batho Pele and health service deliveryThe Batho Pele Principles are important in the public health sector because
they set standards binding health care workers.
These are the eight standards for public health facilities:
❚ Consultation – communities must be consulted about the level and quality
of public services they receive and, where possible, be given a choice
about services being offered.
❚ Service standards – users must be informed about the level and quality of
public services they receive and know what to expect.
❚ Access – all users have equal access to the services they are entitled to.
❚ Courtesy – all people should be treated with courtesy and consideration.
❚ Information – users should be given full, accurate information about
public health services they are entitled to.
The rights and duties of health care workers 347
❚ Openness and transparency – people should be told how national and
provincial departments are run, how much they cost and who is in
charge.
❚ Redress – if the promised standard of service is not delivered and a
complaint is lodged, health care workers must offer an apology, an
explanation and an effective remedy.
❚ Value for money – public services should be provided economically and
effi ciently in order to give individuals and communities the best possible
value for money.
These principles are also refl ected in Chapter 2 of the National Health Act.
Example: Requests for ARVsIf a person requests access to ARV treatment at a clinic where the service is not
yet available, the health care worker should:
❚ inform the user that the service is available elsewhere; and
❚ refer the user to the nearest health establishment that offers the service.